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Monday, November 10, 2014

Beast writer confuses snark with legal analysis

A Steaming Pile of Outrage Porn

Imagine you’re Crash Davis. Yes, the minor-league
baseball player memorably portrayed by Kevin Costner in Bull Durham. You
know you’re not going to make it to the big leagues. You even know your team is
unlikely to win in the minors. But you’re a professional, and you give it all
you’ve got.

This, it seems to me, is the position of Appellate
Judge Jeffrey Sutton, a respected conservative thinker who’s unlikely to make
it either to the Supreme Court bench or the right side of history when it comes
to same-sex marriage, but who is still a judge’s judge, a consummate
professional. What would you do?

Granted, so much is to be expected from anyone who deliberately
writes for The Beast, one of too many e-zines that exist simply to grunt out
steaming piles of outrage porn for the consumption of a polarized, perpetually
angry public. Writing for these vendors of schlock journalism must be easy —
all you have to do is emote for 1,500 words or so.

But whine, snark and ad
hominem arguments aren’t legal analysis. I don’t mean they’re not legal
analysis because they come from a journalist or a blogger; I mean they’re not
legal analysis even if Justice Anthony Kennedy does it, as
he did in United States v. Windsor
(2013). Whine, snark and ad hominems
are a feature of playground name-calling, which is often interchangeable with
political rabble-rousing and (unfortunately) certain brands of comedy.

The “Counter-Majoritarian Force” Fallacy

Let’s begin with a paragraph from Sutton’s majority opinion that
ought to be uncontested wisdom:

Of all the ways to resolve this question, one option is not
available: a poll of the three judges on this panel, or for that matter all
federal judges, about whether gay marriage is a good idea. Our judicial
commissions did not come with such a sweeping grant of authority, one that
would allow just three of us — just two of us in truth — to make such a vital
policy call for the thirty-two million citizens who live within the four States
of the Sixth Circuit.

Here, in just
eighty-six words, is crystallized the central objection so many people have to
judicial activism, whether it be on behalf of the left or the right: the courts’ power of judicial review does
not exist to pass judgment on the moral imperatives of the public. The
question in such legal matters is whether a law transgresses the bounds of the
Constitution, not whether they offend the refined sensibilities of the
judiciary.

But Michaelson isn’t having any of it:

First, and least convincingly, the court argues that it is
better “to allow the democratic processes begun in the states to continue”
debating the merits of same-sex marriage, rather than “take a poll of the three
judges on this panel.” As noted by Judge Martha Craig Daughtrey in dissent,
this is an outrageous position. The whole point of courts is to be
counter-majoritarian, i.e., to interpret the constitutional principles that
constrain majorities from oppressing minorities.

This is false: The
whole point of the courts is to apply the law. Occasionally, the law that
must be applied is the Constitution, which is “the supreme Law of the land”;
only when federal or state laws do transgress that “supreme Law” are courts
properly counter-majoritarian. By Daughtrey’s (and Michaelson’s) rationale, no
one on the left should have a problem with the frustration of the will of the
majority and the protection of minorities from oppression in Burwell
v. Hobby Lobby (2014); the whole point of the “counter-majoritarian
force” theory is to prop up results-first-premisses-to-follow judicial
intervention.

Raging Bullshit

As shallow and wrongheaded as the “counter-majoritarian
force” argument is, at least it has the merit of appealing to a legal theory.
Not so with Michaelson’s next argument:

Next, the court makes a totally different
argument: constitutional originalism. The claims about democracy and precedent
vanish from Judge Sutton’s opinion, which now observes that “From the founding
of the Republic to 2003, every state defined marriage as a relationship between
a man and a woman,” and concludes that “the Fourteenth Amendment permits,
though it does not require, states to define marriage in that way.”

Wait, what? From the founding of the Republic
until 1967, many states defined marriage as a relationship between two people of
the same race. Does that mean that the Fourteenth Amendment permits states to
define marriage in that way?

Of course not. This is why “originalism” is so
beloved of cultural conservatives: All
it really means is “keep the status quo.” By originalist logic, segregated
classrooms, compulsory prayers in school, and bans on contraception are all
magically constitutional, simply because they were present in some older time
of yore. (Of course, the same logic would forbid corporations from making
political donations, but originalists somehow don’t get around to that point.)

In these three paragraphs, Michaelson turns into a raging
demagogue, pressing all sorts of buttons to reach past our critical apparati
and yank our emotional reflexes. Originalists, you see, are big meanies who
like to kick puppies and make children cry for fun; given their way, they’ll
march us right back to the days of Jim Crow and “in the kitchen, barefoot and
pregnant”. Without going off into multiple sidebar discussions on any of the
individual points, it still remains that this argument piles together several
bugaboos into one massive red herring.

However, Judge Sutton’s argument isn’t ideologically
conservative but rather pragmatically conservative. The point of judicial
restraint is that, if our society is
going to change, that change should be organic and empirical, not imposed
by a judicial élite
working from an abstract theory of “what ought to be”.

The most outstanding example of judicial adventurism is Dred Scott v. Sanford (1857), which attempted
to force a resolution on the question of slavery based on a bad interpretation
of property rights, and instead insured the eventual outbreak of the Civil War,
over a hundred years of sectional mistrust, and racial antipathy. Equally devastating
in its own way was Roe v. Wade
(1973), which created a right to abort out of thin air and remains hotly
contested. And in years to come we may all learn to regret Citizens United v. Federal Election Commission (2009), which
expanded the concept of corporate personhood. To date, few supporters of
judicial activism have come to grips with the enormous social and economic
costs that have been incurred by jurists reading their ethoi into the Constitution.

The latter case demonstrates another point: progressives should fear judicial activism. I’ve said it before,
and I’ll say it again — for all their triumphalist talk about “the inevitable
march of progress” and the “right side of history”, any setback will find
liberals openly fearing that the toothpaste can and will be put back in the
tube.

And well they should. Theoretically, an activist judiciary
riddled with social conservatives could roll back whatever changes progressives
like. The likelihood of a modern conservative activist judiciary rolling back Brown v. Board of Education (1954) or Griswold v. Connecticut (1967) is so
slender as to be non-existent; however, Roe,
Windsor and arguably Lawrence v. Texas (2003) would make the short list. It’s
precisely the pragmatic, “don’t rock the boat” restraint that has saved Roe in the past.

Imposing Judicial Morality

These are merely the most egregious errors. I haven’t
touched, for instance, on Michaelson’s irrelevant traipse over the “biblical
value” of polygamy to dismiss natural law arguments offhand as “codswallop”.
(Polygamy isn’t a “biblical value”; it was merely a fact of early Hebrew
society that the Jews eventually gave up.) Michaelson’s post is simply too long
— and too riddled with meretricious badmouthing — to warrant further attention.

Rather, the whole of Michaelson’s rant can be summed up
thus: “The courts shouldn’t impose conservative morality and values on us; they
should impose progressive morality and values on us.” That the courts ought not
be in the business of imposing any values other than those “we the people” have written into the Constitution — which is what originalism is really about — is
a position Michaelson has yet to comprehend.

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